Members of Libya’s General National Council (Photo: Ismail Zitouny/Reuters)

Libya has made yet another significant and controversial decision as it continues down the bumpy path of its post-conflict and post-Gaddafi transition. According to the Libya Herald, the country’s General National Congress (GNC) is preparing to institute a “Political Isolation Law” which will prohibit politicians who were close to the Gaddafi regime from taking political office. The wisdom of such a policy is surely to be hotly contested.

Just days before the new law was announced, a group of GNC members issued a statement declaring that they would “work through the GNC to speed up the passing of a law to block the way for any leftovers from the former regime to infiltrate the organs of the state and its institutions.” They added that “anyone who participated in the destruction can not in any way be a tool for rebuild the state, and it is unimaginable that anyone who took part in the corruption of the social, political and economic life of Libya could ever be a cause for reform.”

The decision by the GNC to introduce the law appears to have come in response to widespread frustration amongst Libyans at the possibility of former Gaddafi officials re-branding themselves to remain in power.

At first glance, this demand would appear unproblematic. Proponents of lustration argue that it is a necessary measure for consolidating the trust of citizens in democratic reforms and institutions. Moreover, there is precedence for such a law. Similar legislation (with the same name) was passed in Egypt. In Iraq, former members of Sadaam Hussein’s Ba’ath Party were barred from office, albeit with disastrous consequences. The official practice of lustration, as a transitional justice mechanism, dates back to the experience of post-communist states in Eastern Europe. After finally escaping from the clutches of communist rule, states such as Poland and Czechoslovakia instituted lustration policies to exclude former communists from political office.

Still, lustration is inevitably a controversial mechanism for achieving post-conflict justice. It typically relies on the release of secret state documents which often cannot have their accuracy verified. It can ensnare innocent government officials who played minimal and often technocratic roles in a process that resembles more of a witch hunt than political vetting. Lustration can also inspire political backlashes as excluded officials with significant material and political resources reorganize to challenge or undermine their country’s political transition. Of course, such policies are also inevitably an action taken by ‘victors’ against their former ‘oppressors’ and can thus entrench social and political divisions and make reconciliation more difficult to achieve. In this context, some political figures may attempt to use lustration not as a means to achieve justice but to exclude competitors from favourable positions. Moreover, in states where virtually the entire political class was associated with a past regime, lustration may disqualify or irrevocably taint political actors whose skills could positively contribute to the country’s transition.

(Photo: Lorianne Updike Toler)

Given the above, it will be critically important that Libya – like any other state considering the use of lustration policies – be very careful in deciding precisely who is to be excluded and on what grounds. Many of the failures of past lustration policies have been the direct result of poor planning and confused policies.

It is thus troubling that very little about the new Political Isolation Law (a terribly aggressive name for a lustration policy) is currently known. As Tom Little notes,

[T]he exact details of the law are still unclear, and it has yet to be decided what criteria members of the government and the GNC would have to meet to be isolated. It is also far from clear how many government and GNC officials might be affected by the law.

Importantly, the GNC’s law will likely be focused on senior officials and not target minor members of Gaddafi’s government. As one GNC member stated,

“[w]e are asking that those who have been involved in the bloodshed in Libya, with the corruption, not be allowed to be represented in the government, and we want to include this in our future constitution or by laws.”

Still, precisely what this means remains unclear. Given the country’s recent history, this is problematic. Libya’s revolution was fuelled by and on many levels led by the defection of Gaddafi’s inner circle to the rebels and their political wing, the National Transitional Council. Amongst others, Mustafa Abdul Jalil (a former Minister of Justice under Gaddafi), Mahmoud Jibril (former head of the National Planning Council of Libya and of the National Economic Development Board of Libya) and Shukri Ghanem (former Prime Minister), all defected from the Gaddafi regime, immediately boosting the revolutions’ and the rebels’ legitimacy. It remains unclear if any of these figures – so critical to the revolutions’ success – would be able to hold political office.

At the same time, the Political Isolation Law will not only cover politicians but also members of Libya’s judiciary. This might be seen as an irresistible opportunity to rid Libya of its cohort of pro-Gaddafi judges and lawyers, many of whom clearly had little respect for the fundamental human rights of Libya’s citizens. However, including the judiciary is likely to have significant implications on the country’s capacity to effectively prosecute individuals allegedly responsible for serious crimes during and prior to the Revolution. As early as November 2011 International Legal Assistance Consortium foreshadowed this dilemma:

Given the history of the Libyan judiciary’s subservience to the regime, it is difficult to imagine that many existing judges, particularly senior judges, could legitimately serve in a democratic Libya. On the other hand, some thoughtful Libyan expressed concern that total lustration, similar to the de-Baathi$cation steps taken in Iraq, could leave the judicial system with no experienced judges and prosecutors, while creating a cadre of former regime loyalists embittered by their loss of professional standing and income.

Dealing with the past is never an easy task for states emerging from a period of atrocity and autocracy. States have to deal with the need to move forward as well as the expectations of citizens that justice be served. But justice means a lot of different things to people. For many Libyans, part of what justice means is that those officials who were associated with – and perhaps partially responsible for – forty years of Gaddafi rule are never again allowed to assume positions of political influence. The wisdom of such a policy remains murky at best. But if Libya is to go through with its Political Isolation Law, it would be wise to do so carefully and communicate this new law clearly. If it chooses not to, the government risks taking a significant step back in its transition, one that will be very difficult to reverse.

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About Mark Kersten

Mark is a researcher, consultant and teacher based at the Munk School of Global Affairs in Toronto, Canada. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, Mark's work examines the politics of the International Criminal Court and the effects of its interventions on peace, justice and conflict processes.

And like the lustration debate, the property debate is one that is driven in part by concerns over the risk of violent self-help by people with grievances against the Gaddafi regime who feel that the new government and legislature are not moving fast enough to address their concerns. As Mark points out in his excellent post, defections have provided significant expertise and organizational experience to the 2011 revolutionaries and the subsequent transitional and post-election governments in Libya.

However, the risks that a lustration law seeks to contain are arguably demonstrated by a pattern of attacks in the East on security officials associated with the old regime that began during the uprising and may now be culminating in a series of security incidents around Benghazi police stations. The political backstory to these attacks is very complicated (the most recent ICG report on Libya gives a good overview), but there is almost undoubtedly an element of lethal lustration involved.

Oh that elephant! Sorry, I am apparently better at mixing metaphors than picking up on them! I don’t suspect anyone very seriously thought he had much of a political comeback ahead of him. Or have I missed again? Grateful if you could unpack your pachyderm…